Recovery of adult alimony from a parent for payment in the higher education system
Case No.7517-23-00-2/28256 dated December 14, 2023
A lawsuit was filed with the court by B.A.S., an adult, to recover alimony for payment in the higher education system against the Defendant I.S.B. (Hereinafter referred to as the Defendant), who lived together with I.M. in a registered marriage.
As a result of living together, a son, B.A.S., was born (hereinafter referred to as the Plaintiff) Born on 22.09.2005.
The Defendant does not participate and does not take part in the upbringing of the Plaintiff as a father.
Currently, the Plaintiff has enrolled in paid education on the basis of an educational grant (won an educational grant of 85%) at a Higher educational institution, Cyprus International University, Computer Engineer (as evidenced by certificate No. 22301399 dated 07/04/2023.
Thus, the Plaintiff has expenses for studying in the higher education system, as well as other expenses such as clothing, food, travel, rental expenses, etc.
The plaintiff is completely dependent on the mother. The Plaintiff's financial situation currently needs assistance. Especially from his own father.
According to paragraph 2, Article 141 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family" (hereinafter referred to as the Code), it is stipulated that the collection of maintenance for children studying in the system of general secondary, technical and vocational, post-secondary education, in the system of full-time higher education under the age of twenty-one, if in the absence of an agreement on the payment of alimony, it is carried out in court in a fixed amount of money.
Paragraph 3 provides that the amount of a fixed sum of money is determined by the court based on the size of the monthly calculation index to the extent possible to maintain the child's previous level of security, taking into account the financial and marital status of the parties and other circumstances worthy of attention.
Article 144 of the Code states that in the absence of an agreement on the payment of alimony and in the presence of exceptional circumstances (serious illness, injury to minor children or disabled adult children in need of assistance, the need to pay for outside care for them and other circumstances), each parent may be involved by the court to bear additional costs caused by these circumstances..
If the procedure for the parents' participation in additional expenses and the amount of these expenses are not determined by mutual agreement, they are determined by the court based on the financial and marital status of the parents, other children and the interests of the parties that deserve attention in a multiple of the monthly calculation index at the time of payment of alimony payable monthly.
The court has the right to oblige parents to participate in both the actual additional expenses incurred and the additional expenses that must be incurred in the future for the maintenance of children.
In accordance with paragraph 14 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated November 29, 2019 No. 6 on the application of legislation by courts when considering cases related to the recovery of alimony, which stipulates that claims for the recovery of alimony for adult children studying in the system of general secondary, technical and vocational, post-secondary education, in the system of higher education full-time education under the age of twenty-one (paragraph 2 of Article 138 of the Code) is presented by adults themselves.
The amount of child support to be collected in this case is established by the court in accordance with paragraph 2 of Article 141 of the Code in a fixed amount of money, based on the size of the monthly calculation index (hereinafter referred to as the MCI), to the extent possible to preserve the child's previous level of security, taking into account the material and marital status of the parties and other circumstances worthy of attention.
At the same time, it is necessary to take into account the costs necessary for the purchase of clothing, food, tuition fees for paid education, rental costs, etc.
In each case, the court must proceed from the necessity of these costs.
In the Information Letter The Advisory Council for the Development of a unified judicial practice in the Administration of Justice of the Karaganda Regional Court dated June 6, 2012 No. 10 "On the practice of considering civil cases for the recovery of alimony for minors and adult children" recommended: In order to form a uniform judicial practice of considering civil cases related to the recovery of alimony amounts for the maintenance of minor children enrolled in the system general secondary, technical and vocational, post-secondary education, in the system of full-time higher education under the age of 21, as well as disputes about changing the amount of alimony for minor children previously established by the court, the Advisory Council recommends the following. According to paragraph 2 of art. 141 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family" (hereinafter referred to as the Code), the collection of maintenance for children studying in the system of general secondary, technical and vocational, post-secondary education, in the system of full-time higher education under the age of 21, in the absence of an agreement on the payment of alimony is carried out in in a court order in a fixed amount of money.
In accordance with the requirements of Article 17 of the Civil Code, a citizen's ability to acquire and exercise civil rights, create civil duties for himself and fulfill them arises in full upon reaching the age of majority, i.e. upon reaching the age of eighteen.
By virtue of Article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to defend their violated or disputed rights, freedoms or legally protected interests.
In accordance with Article 8 of the CPC, everyone has the right to apply to the court for protection of violated or disputed constitutional rights, freedoms or protected interests.
In accordance with Article 15 of the Civil Procedure Code of the Republic of Kazakhstan, the parties choose their position, ways and means of defending it independently and independently of the court, other bodies and persons during civil proceedings.
Article 30, paragraph 4, of the Civil Procedure Code of the Republic of Kazakhstan "Jurisdiction at the choice of the plaintiff" defines: Claims for establishing paternity and for collecting alimony may be filed by the plaintiff at his place of residence.
As stipulated in the Code of the Republic of Kazakhstan on Taxes and Other Mandatory Payments to the Budget (Tax Code), Article 616, paragraph 4, "Exemption from payment of state duty in courts", Plaintiffs are exempt from paying state duty in courts for alimony claims, respectively, in these circumstances of the case, the Plaintiff is exempt from paying state duty in the court.
The reasons for the above are guided by paragraph 2, Article 141 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family",
They asked the Court:
To collect alimony from the Defendant I.S.B. in favor of the Plaintiff B.A.S. in the form of a fixed sum of money for the maintenance of tuition fees in the higher education system, as well as additional expenses in the amount of 200 MCI monthly from 09/25/2023
The court also filed a Motion for reimbursement of the costs of paying for the assistance of a representative, since between the Law Firm Law and Law and B.A. With the plaintiff, a contract was concluded for the provision of legal assistance (hereinafter referred to as the Contract), according to which the Law Firm Law provides the plaintiff with services to represent interests in the court of first instance in the above-mentioned civil case.
In accordance with paragraph 1 of Article 113 of the Civil Procedure Code of the Republic of Kazakhstan, at the request of the party in whose favor the decision was made, the court awards, on the other hand, the costs incurred by her to pay for the assistance of a representative (several representatives) who participated in the process and is not in an employment relationship with this party, in the amount of the costs actually incurred by the party.
According to clause 11-1. Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2006 No. 9 on the application by courts of the Republic of Kazakhstan of legislation on court costs in civil cases (hereinafter referred to as the Resolution), where, when considering cases in accordance with Chapters 12, 13 of the CPC, the court is obliged to resolve the issue of the distribution of court costs between the parties in accordance with the requirements of Chapter 8 of the CPC. At the same time, the court should take into account the amount of assistance provided by the representative. Such expenses are subject to reimbursement in accordance with subparagraph 9) of Article 108 of the CPC. Based on the above, and guided by art. 113 CPC RK, also requested Court:
To collect from the defendant in favor of the plaintiff representative expenses in the amount of 150,000 tenge.
On December 14, 2023, the Medeu District Court of Almaty, consisting of: the presiding judge And M.M., with the secretary of the court session With A., considered online through the city of Almaty using a videoconferencing system in open court a civil case on the claim: BAS to the Defendant of the ISB about the recovery of alimony for the period of study in the higher education system.
Guided By Articles 223-226, 229 of the CPC, the court Decided:
The claim of the BAS for the recovery of alimony for the period of study in the higher education system is partially satisfied.
To collect from the HMB in favor of the BAS, who is studying full-time in the higher education system, funds in the form of alimony for his maintenance for the period of study, monthly in the amount of 45 (forty-five) monthly calculation indices (MCI), starting from October 18, 2023 and until he reaches the age of twenty-one.
The decision regarding the recovery of alimony is subject to immediate execution.
To collect from the HMB in favor of the BAS the court costs of paying for the services of a representative in the amount of 150,000 (one hundred and fifty thousand) tenge.
Collect a state duty in the amount of 18,630 (eighteen thousand six hundred and thirty) tenge from the HMB to the state revenue.
The appeal was not filed by the party, the court decision entered into force and was transferred to the Bailiff for compulsory execution of the judicial act.
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